Lawrence v Nationwide News Ltd
[2006] WASC 231
LAWRENCE -v- NATIONWIDE NEWS LTD & ANOR [2006] WASC 231
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 231 | |
| Case No: | CIV:1252/2006 | 28 AUGUST 2006 | |
| Coram: | MASTER NEWNES | 13/10/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application successful in part | ||
| B | |||
| PDF Version |
| Parties: | PETER CHARLES LAWRENCE NATIONWIDE NEWS LTD (ACN 008 438 828) COLLEEN EGAN |
Catchwords: | Defamation Application to strike out statement of claim Whether words complained of arguably refer to plaintiff Whether imputations arguably capable of being conveyed Turns on own facts |
Legislation: | Nil |
Case References: | Lawrence v McCusker [2006] WASC 173 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Dare v Pulham (1982) 148 CLR 658 David Syme & Co v Canavan (1918) 25 CLR 234 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Dwek v Macmillan Publishers Ltd [2000] EMLR 284 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gumina v Williams (No 1) (1990) 3 WAR 342 Interval Resort Networks (Australasia) Pty Ltd v West Australian Newspapers Ltd [1999] WASC 2 Jones v Skelton [1963] 3 All ER 952 Kasic v Australian Broadcasting Commission [1964] VR 702 Knupffer v London Express Newspaper Ltd [1944] AC 116 Lewis v Daily Telegraph Ltd [1964] AC 234 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Sim v Stretch [1936] 2 All ER 1237 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Sugiarso v Pang [2002] WASC 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
NATIONWIDE NEWS LTD (ACN 008 438 828)
COLLEEN EGAN
Defendants
Catchwords:
Defamation - Application to strike out statement of claim - Whether words complained of arguably refer to plaintiff - Whether imputations arguably capable of being conveyed - Turns on own facts
Legislation:
Nil
Result:
Application successful in part
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Dr M J Collins
Defendants : Mr K J Martin QC
Solicitors:
Plaintiff : Peter G Richards
Defendants : Edwards Wallace
Case(s) referred to in judgment(s):
Lawrence v McCusker [2006] WASC 173
Case(s) also cited:
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
Dare v Pulham (1982) 148 CLR 658
David Syme & Co v Canavan (1918) 25 CLR 234
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Dwek v Macmillan Publishers Ltd [2000] EMLR 284
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gumina v Williams (No 1) (1990) 3 WAR 342
Interval Resort Networks (Australasia) Pty Ltd v West Australian Newspapers Ltd [1999] WASC 2
Jones v Skelton [1963] 3 All ER 952
Kasic v Australian Broadcasting Commission [1964] VR 702
Knupffer v London Express Newspaper Ltd [1944] AC 116
Lewis v Daily Telegraph Ltd [1964] AC 234
(Page 3)
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Sim v Stretch [1936] 2 All ER 1237
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Sugiarso v Pang [2002] WASC 10
(Page 4)
1 MASTER NEWNES: This is an application by the defendants to strike out par 8 and par 9 of the statement of claim on the ground that those pleas fail to disclose a reasonable cause of action or that they will prejudice, embarrass or delay the fair trial of the action, alternatively to strike out the whole of the statement of claim on the ground that it fails to disclose a reasonable cause of action or is embarrassing.
The statement of claim
2 In the statement of claim, the plaintiff pleads that the first-named defendant is and was at all material times the publisher and proprietor of "The Sunday Times" newspaper and certain internet web sites and that the second-named defendant was at all material times an employee of the first-named defendant. The plaintiff is the widower of Pamela Lawrence who was murdered on 23 May 1994. Andrew Mallard was tried and convicted of the murder in 1995. On 15 November 2005 the High Court quashed the conviction.
3 It is then pleaded, so far as presently relevant, as follows:
"5 The vicious killing of Pamela Lawrence, the subsequent trial and conviction of Mallard, the appeals brought by Mallard in respect of that conviction, and the quashing of that conviction by the High Court, were the subject of wide and extensive media reports in Western Australia and in each other State and Territory of Australia in the period before 26 February 2006 ('Antecedent Media Reports').
PARTICULARS
Examples of Antecedent Media Reports published by Nationwide News over the period 24 June 2002 to 22 February 2006 are set out in the annexure marked 'A'. Antecedent Media Reports written and thereby published by Egan over that period are underlined in that annexure.
Antecedent Media Reports were also published by other media organisations, including The West Australian and the Australian Broadcasting Corporation.
(Page 5)
- Further particulars may be provided after discovery."
4 It is pleaded that, on or about 26 February 2006, the defendants published to a wide and extensive audience in Western Australia, and to persons in each other State and Territory of Australia, the following words:
"Litany of flaws
in Mallard case
By COLLEEN EGAN
Police botched murder probe
EXCLUSIVE
THE police case that resulted in the conviction of Andrew Mallard for the murder of Pamela Lawrence was deeply flawed, raising questions over whether the real killer will ever be known.
The decision this week to drop a wilful murder charge against Mr Mallard means highly contentious evidence may never be tested in court.
Mr Mallard, 43, this week walked free after almost 12 years behind bars. His conviction was quashed by the High Court in November because crucial evidence was withheld from the defence during his 1995 trial.
Mr Mallard's lawyers, working pro bono to exonerate him of the vicious 1994 killing, were preparing to allege a litany of police blunders at the re-trial scheduled for July.
They included that:
• [1] Police did not take a detailed statement, bloodied clothing or a vehicle from a person before he left the scene, contrary to accepted practice.
• [2] Clothing and a blood-stained vehicle were not seized for two days.
• [3] Clothing was examined by a chemist, but not by a police blood-splatter expert.
(Page 6)
- • [4] Mr Mallard could not have been wearing those clothes.
• [5] Evidence suggests a member of Mrs Lawrence's family was at the scene before the ambulance arrived, but evidence has never been taken from her to ascertain if she saw anything relevant to the crime.
• [6] Several witnesses saw someone suspicious fitting the description of a bearded man in a bandanna, which a schoolgirl gave to police, but those leads were not followed up.
• [7] People offering information about men wearing bandannas were not interviewed by investigators.
• [8] Mr Mallard's lawyers have been told that bloodied items have been destroyed, as has the property book that should have recorded who ordered the destruction.
• [9] The statement of a witness at the scene was not taken for three days.
• [10] There was an unexplained 20 minutes on the evening of the murder in one crucial recollection of events from a person of interest.
• [11] A person handled Mrs Lawrence's handbag, pointing out that her purse was missing, after being told by a constable not to touch anything.
• [12] Police did not search Mrs Lawrence's house in the days after the murder to see if her purse, which was the only item allegedly stolen, was there.
• [13] A large drop of blood at the foot of a copper bath, capable of cleaning a murder weapon, in a shed at the back of the shop, was never explained.
• [14] A wrench allegedly used by Mr Mallard (which was proved not to be the weapon) was reported missing more than two weeks after the murder, at the same time Mr Mallard was in police custody giving an unsigned, unrecorded 'confession'.
(Page 7)
- Deputy Commissioner Chris Dawson refused to answer questions about the investigation.
'WA Police do not propose to debate the details of the Mallard case in the media,' he said. 'The proper forum for that now is the Corruption and Crime Commission inquiry instigated by Commissioner Karl O'Callaghan on 21 November, 2005. If the CCC so choose, WA Police would support any hearings into the Mallard case being held in an open forum.'
Director of Public Prosecutions Robert Cock QC said in court this week that Mr Mallard was still the 'prime suspect', despite the case being too weak to be retried.
Mr Cock said the charges were dropped because of a change in the law regarding video confessions.
He was confident of re-convicting Mr Mallard if 11 hours of unrecorded, unsigned police interviews could be admitted in court and if a 25-minute video interview was not of a 'highly leading nature'.
He said he was unimpressed by the blood-spatter report of Canadian expert Joe Slemko because there were credibility problems with Mr Slemko's work in the recent case of Rory Christie.
Mr Cock said: 'In Christie, there were to be a number of very considerable anomalies capable of being exposed (and) I was warned that for these reasons his conclusions were not reliable,' Mr Cock said yesterday.
Mr Mallard and his family want interstate police to conduct a cold-case review. 'We don't want to point the finger at anybody, we just want the investigation to finally be done properly,' Mr Mallard said.
8)
5 The plaintiff then pleads as follows:
"Identification
8 The Article was of and concerning the Plaintiff ('Lawrence').
PARTICULARS
(i) Persons who had read or heard the Antecedent Media Reports or some of them knew or understood the following matters:
(A) Pamela Lawrence had been viciously killed at her jewellery shop on 23 May 1994;
(B) Pamela Lawrence's husband, namely Lawrence, had reported the crime to the police; and
(C) Lawrence had told the police a wallet was gone from his wife's handbag.
- Lawrence refers, for example, to Egan's article, 'A murderer no more' which was published by the Defendants in The Australian on 22 February 2006, in which each of those matters is stated.
(ii) To persons who knew or understood those matters:
(A) the following words in the Article were understood to be references to Lawrence:
'a person' and 'he' (first bullet point);
'a witness' (ninth bullet point);
- 'a person of interest' (tenth bullet point); and
'a person' (eleventh bullet point);
- (B) the 'bloodied clothing', 'clothing' and 'clothes' (first, second, third and fourth bullet points) were understood to be references to Lawrence's clothing;
(C) the 'vehicle' and 'blood-stained vehicle' (first and second bullet points) were understood to be references to Lawrence's vehicle; and
(D) the 'bloodied items' (eighth bullet point) were understood to be references to items belonging to Lawrence.
- Defamatory Meaning
9 In its natural and ordinary meaning, alternatively by way of innuendo, the Article meant and was understood to mean that:
(a) Lawrence murdered his wife Pamela Lawrence;
(b) Lawrence is suspected on the basis of reasonable, unexplained evidence of having murdered his wife Pamela Lawrence; and
(c) Lawrence interfered with evidence in a murder investigation after being told by a police constable not to touch anything.
PARTICULARS
(i) As to the imputations in paragraphs (a) and (b), Lawrence will rely at trial on the whole of the Article, and in particular on the words 'the real killer' and the first, second, third, fourth, eighth, ninth, tenth,
- eleventh, twelfth and thirteenth bullet points.
- (ii) As to the imputation in paragraph (c), Lawrence will rely at trial on the whole of the Article, and in particular on the eleventh bullet point.
(iii) As to the basis for the innuendo meanings complained of, Lawrence refers to and repeats the particulars to paragraph 8."
6 The defendants sought, in relation to par 8 of the statement of claim, particulars of each and every fact of each and every antecedent media report that would cause persons who had read or heard those reports to understand that the matter complained of was of and concerning the plaintiff. The plaintiff objected to providing those particulars but under cover of that objection provided a list of 99 newspaper articles published in the period from July 2002 to February 2006.
7 The plaintiff said that the fact identified in par 8(i)(A) of the statement of claim was stated in each of the articles, the fact identified in par 8(i)(B) was stated in 25 of the articles (those 25 articles being particularised), and the fact identified in par 8(i)(C) was stated in eight of the articles (those eight articles being particularised). It follows that the three facts pleaded would be known only to a person who had read both one or more of the 25 articles said to state the par 8(i)(B) fact and one or more of the eight articles said to state the par 8(i)(C) fact. Only some of the articles said to state the par 8(i)(C) fact are said also to state the par 8(i)(B) fact.
8 The defendants also sought, in relation to par 9 of the statement of claim, particulars of each and every fact of each and every antecedent media report that would cause the article to convey the defamatory meaning. The plaintiff objected to providing those particulars but under cover of that objection referred to the same 99 articles.
The defendants' submissions
9 The defendants made two complaints in relation to par 8 of the statement of claim. First, it was submitted that it should not be for the defendants to read and analyse each of the newspaper articles constituting the "Antecedent Media Reports", to ascertain what it is in the article that is alleged to constitute the statement of the relevant extrinsic fact. In
(Page 11)
- respect of each publication the plaintiff must identify any part which is alleged to contain or state the relevant extrinsic fact pleaded in par 8(i). It is grossly insufficient and embarrassing simply to mention the articles by heading and date, and leave it to the defendants to work out why it is said that a reader of a particular article would know the fact alleged.
10 By way of illustration, Senior Counsel for the defendants tendered the article "A murderer no more", published in "The Australian" newspaper on 22 February 2006, and referred to in both par 5 of the statement of claim and the further and better particulars of the statement of claim as stating each of the three facts pleaded by the plaintiff. Senior Counsel pointed out that the article does not state, in terms, the fact pleaded in par 8(i)(B) - that the plaintiff had reported the crime to the police - so if that fact is contained in the article it is apparently to be inferred from other statements in the article.
11 Secondly, the defendants submitted that the reference in par 8 to a person having "heard" the antecedent media reports is embarrassing. It is not apparent how the plaintiff alleges a person could come to "hear" the content, or the relevant content, of printed publications, nor is it clear whether those persons are said to be different from those who have read the articles.
12 That objection led to another objection, namely that the "Antecedent Media Reports" particularised in par 5 appear to include media reports which are not contained in the particulars of the "Antecedent Media Reports" pleaded in par 8. In particular, the former refers to media reports by the Australian Broadcasting Corporation, whereas the latter does not. What is encompassed by the "Antecedent Media Reports" is therefore unclear.
13 The defendants submitted that, in any event, a person with knowledge of the facts alleged in par 8(i) would not arguably be capable of identifying the plaintiff as the subject of the article. On any fair reading, the subject matter of the article is flaws in the police investigation of the crime and, to the extent it mentions any suspect, states explicitly that the DPP regards Mallard as the prime suspect and is confident of "re-convicting" him. In light of that, it cannot arguably be maintained that the article concerned the plaintiff.
14 It was submitted on behalf of the defendants in relation to par 9 of the statement of claim that first, the words in their natural and ordinary meaning were plainly not capable of conveying the imputations alleged;
(Page 12)
- secondly, the particulars of the extrinsic facts of identification relied upon for an innuendo meaning were inadequately pleaded for the above reasons; thirdly, it was unclear whether those were the only extrinsic facts relied upon; and fourthly, the meanings pleaded in par 9(a) and par 9(b) are not arguably capable of arising, and that the meaning pleaded in par 9(c) is not arguably defamatory and, in any event, does not convey the "sting" of the alleged libel.
The plaintiff's submissions
15 It was submitted on behalf of the plaintiff that the circumstances of the murder and the subsequent arrest, trial and conviction of Mallard, and the quashing of his conviction were notorious, and that is amply demonstrated by the substantial body of media reports identified in the statement of claim and the particulars. It is to be inferred that at least some persons who read the words complained of had seen the relevant media reports and therefore knew the facts alleged in par 8(i)(A), par 8(i)(B) and par 8(i)(C). That was illustrated by the article referred to in par 8(i), the article in "The Australian" newspaper of 22 February 2006, which contained all three alleged facts.
16 It would be the plaintiff's case at trial that it is to be inferred that readers of the words complained of who were familiar with the media reports would have known or understood the three matters pleaded in par 8(i); namely that Pamela Lawrence had been viciously murdered at her jewellery shop on 23 May 1994, that the plaintiff had reported the crime to police; and that the plaintiff had told the police that a wallet was missing from his wife's handbag.
17 The persons who knew the first two facts would understand that the matters pleaded in par 8(ii), apart from the reference in the eleventh bullet point to handling Mrs Lawrence's handbag, were a reference to the plaintiff. The persons who knew the additional fact that the plaintiff had told the police a wallet was missing from his wife's handbag would have understood the reference in the words complained of to a person handling the handbag as being a reference to the plaintiff.
18 The article was therefore arguably capable of identifying the plaintiff as the person referred to in respect of those matters. Persons who understood the matters pleaded in par 8(ii) to refer to the plaintiff would understand the words complained of to bear the meanings pleaded in par 9 of the statement of claim.
(Page 13)
19 It was submitted that it is unnecessary to identify the specific passages in the antecedent media reports which contained the facts pleaded in par 8. The question of whether a reader of the relevant articles would have known those facts is a matter for trial, not the basis of a strike out application. It does not embarrass the defendants.
20 It was submitted that the meanings pleaded in par 9(a) and par 9(b) of the statement of claim are plainly capable of being conveyed by the article to a person with knowledge of the extrinsic facts. Counsel for the plaintiff referred, in particular, to the words in the article "raising questions over whether the real killer will ever be known" and the listed "litany of police blunders" which, it was submitted, suggested that the identification of the "real killer" was obscured by the "blunders". The fact that many of the alleged "blunders" concerned matters pointing to the plaintiff suggested that the plaintiff was the "real killer". The article was written in sensational terms and contained a detailed and colourful account of allegedly suspicious circumstances pointing toward a likelihood that the plaintiff was guilty.
21 It was submitted that the imputation in par 9(c) was plainly defamatory of the plaintiff. To impute that a person willingly interfered with evidence in a murder investigation has an obvious arguable tendency to lower that person in the estimation of ordinary reasonable people.
The relevant principles
22 The relevant principles to be applied on an application of this nature are set out in my judgment in Lawrence v McCusker [2006] WASC 173 at [16] - [24], to which Senior Counsel for the defendants referred in argument and in which action this plaintiff is again the plaintiff. I will not, therefore, repeat them. They were not in controversy on this application.
Is the statement of claim defective?
23 In the course of argument, counsel for the plaintiff said that it was the plaintiff's case that a person who had read any one or more of the media reports containing the facts alleged in par 8(i)(A) and par 8(i)(B) - that is to say, a person who had read any one of the 25 articles which contained both facts - would know those facts and it was to be inferred that some people who had done so would also have read the words complained of. Similarly, it is to be inferred that some of the people who had also read any one or more of the eight articles containing the third fact
(Page 14)
- would have known that fact and it is to be inferred that some of those people would also have read the words complained of.
24 On that basis it seems to me that the word "some" in par 8(i) is embarrassing. It appears to refer to an indeterminate number of the articles, rather than any or more of the 25 articles in respect of the facts alleged in par 8(i)(A) and (B), or any one or more of the eight articles in respect of the facts alleged in par 8(i)(C).
25 It was also submitted on behalf of the plaintiff that the words "or heard" in par 8(i) were in anticipation of further publications by electronic media being added to the statement of claim in the future. It did not refer to a person who had heard of the newspaper articles or their contents. In my view, the plea is embarrassing. It does not refer to any matter currently relevant to the plaintiff's case and is apt to cause confusion. It can be restored to the extent necessary if the plaintiff later amends the statement of claim to plead publications by electronic media.
26 The reference to the "Antecedent Media Reports" is also, in my view, confusing, and therefore embarrassing. It appears from par 5 to include reports published by (unspecified) media organisations other than the first-named defendant, "including … the Australian Broadcasting Corporation". On the other hand, the further and better particulars of the "Antecedent Media Reports" pleaded in par 8 appear to be exhaustive as to the media reports upon which the plaintiff relies, at least in relation to the current form of the pleading. They do not, however, refer to any publications by the Australian Broadcasting Corporation.
27 The plaintiff is entitled, as he does in par 5, to give notice that further particulars may be given, but at any given time the media reports defined as the "Antecedent Media Reports" must be fully and consistently particularised so it is clear specifically what media reports are relied upon. It otherwise leaves the defendants not knowing what might be alleged at trial under that rubric.
28 On that basis, it seems to me par 8(i) and the particulars of par 5 are embarrassing as they currently stand and I would strike them out. If at some stage particulars of publications by radio or television are added, then the necessary amendments can be made to the particulars.
29 I also accept that in respect of each of the media reports referred to it is necessary for the plaintiff to identify the particular passages upon which he relies for a reader's knowledge of the alleged fact or facts. I do not consider it is for the defendants to attempt to ascertain from each
(Page 15)
- publication what it is in that publication that the plaintiff says would have informed the reader of the relevant fact. In any case where the fact is not expressly and unequivocally stated in the publication - and it is not evident that it is expressly and unequivocally stated in each publication - it is not difficult to envisage the problems that could arise at trial if the relevant passages have not previously been identified by the plaintiff.
30 Although there are 99 publications, the identification of the relevant passages ought not to be an unduly burdensome task for the plaintiff's legal advisers. In order to plead the statement of claim, the plaintiff's legal advisers will already have reviewed each article to identify the stated fact it is said to contain and, in addition, the plaintiff's counsel said in the course of argument that overwhelmingly the articles are short articles.
31 It would seem desirable, however, that the particulars of the relevant passages be separately delivered so as to avoid unduly increasing the length of the statement of claim.
32 The next question is whether it is arguable that a person who knew the facts alleged in par 8(i) would have understood the words complained of in the manner contended for by the plaintiff.
33 In the course of the application, counsel for the plaintiff conceded that the plea in par 9 that the meanings alleged were conveyed by the words complained of in their "ordinary and natural meaning" was not sustainable. Those words should therefore be struck out. The imputations alleged in par 9 are then pleaded to arise only by way of innuendo.
34 In my view, it is arguable that a person who knew the facts alleged in par 8(i) would have understood the words of the article set out in par 8(i)(ii) to be references to the plaintiff. I consider that in those circumstances the words complained of are arguably capable of conveying the meaning pleaded in each of par 9(a) and par 9(b). While it is the case that the article quotes the Director of Public Prosecutions as saying that the "prime suspect" was still Mr Mallard, the article questions whether, because of alleged deep flaws in the police case, the "real killer" will ever be known. The alleged "litany of police blunders" which is said to constitute the flawed investigation includes a number which, on the plaintiff's case, relate to failures properly to investigate matters relating to him, including "bloodied clothing", a "blood-stained vehicle" and "bloodied items", a failure to take a statement from him for three days and an unexplained gap in the plaintiff's recollection of events.
(Page 16)
35 When the words complained of are read as a whole in the light of the extrinsic facts, I do not consider it can be said that they are plainly incapable of conveying those imputations.
36 I accept, however, that the plea in par 9(c) is embarrassing. I do not consider that it adequately distils the defamatory sting relied upon by the plaintiff. Counsel for the plaintiff submitted that it was clearly defamatory of a person to say that they had "willingly interfered" with evidence in a murder investigation. That, however, is not how the imputation is pleaded and I do not accept the submission of counsel for the plaintiff that deliberate interference is necessarily to be inferred. If deliberate interference is meant that should be pleaded. I consider that the defendants' objection is made out and I would strike out the plea.
Conclusion
37 I would therefore strike out the particulars of par 5, par 8(i), par 9(c) and the words "In its natural and ordinary meaning, alternatively" in each of par 9 and par 12(ii). I would give the plaintiff leave to replead. I will hear the parties on the time within which that is to be done and on costs.
0
13
0